Being Unfaithful to One's Own Principles: The Israeli Supreme Court and House Demolitions in the Occupied Palestinian Territories

Abstract

The practice of house demolition in the Occupied Palestinian Territories (‘the Territories’) pursued by Israel for the purpose of deterring potential terrorist activities (as opposed to planning or operational purposes) has attracted voluminous literature, most of which is critical. Scholarship postulates that the practice is immoral and ineffective, that it is contrary to Jewish morals and international law, and that it may amount to an international crime. Some of the critical writings focus on the practice of the Israel Defence Forces; others concentrate on the failure of the Israeli Parliament to curb the practice, while others examine the practice in its wider context, namely the Israeli–Palestinian conflict. This article focuses on the regulation of the practice by the Israeli Supreme Court (‘the Court’). This theme has already been examined by numerous scholars including, in particular, Kretzmer and Simon, who found that the Court's jurisprudence is contrary to public international law and its reasoning is unpersuasive. This article aims to add to the existing scholarly corpus by using a different prism. It contrasts the Court's house demolition jurisprudence with its own jurisprudence in comparable areas in which it is called upon to resolve tensions between security and human rights in the Territories, postulating that in handling house demolition measures the Court is unfaithful to its own jurisprudence. Building upon these findings, the article distils the manifestations of that unfaithfulness and its negative repercussions in normative, coherence and legitimacy terms. It concludes with the call that when the issue of house demolition is brought back before the Court, it should apply the same approach, spirit, techniques and benchmarks that it has employed in analogous areas of law.